Citation Nr: 9922290
Decision Date: 08/09/99 Archive Date: 08/24/99
DOCKET NO. 95-40 316A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an increased disability rating for service-
connected posttraumatic stress disorder (PTSD), currently
evaluated as 50 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Allen, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1950 to
September 1953.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama, which denied a claim by the veteran
seeking entitlement to an increased disability rating for his
service-connected PTSD, then determined to be 30 percent
disabling. In an October 1996 decision, the RO granted an
increased disability rating, to 50 percent.
FINDINGS OF FACT
1. All evidence necessary for an equitable adjudication of
the veteran's claim has been developed.
2. The medical evidence shows that the veteran's service-
connected PTSD currently involves severe nightmares and
flashbacks, depression, anxiety, insomnia, intermittent
suicidal ideation, and occasional visual hallucinations. His
insight, intelligence, judgment, and memory have been
consistently reported as fair to good. The most recent
Global Assessment of Functioning (GAF) score was 31, during a
1998 VA hospitalization for PTSD; the highest GAF score
during the year was 60.
3. The medical evidence does not show that the veteran's
PTSD is totally incapacitating with manifestations of gross
impairment of thought processes or communication; persistent
delusions or hallucinations; an inability to perform
activities of daily living, including personal hygiene;
disorientation to time or place; or memory loss for names of
close relatives, own occupation, or own name. It also does
not show symptoms bordering on a gross repudiation of reality
associated with almost all daily activities, with fantasy,
confusion, and a profound retreat from mature behavior.
4. The medical evidence shows that the veteran's PTSD
precludes him from securing or following substantially
gainful employment.
CONCLUSIONS OF LAW
1. The schedular criteria for an evaluation of 70 percent,
and no more, for the veteran's service-connected PTSD, have
been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§ 4.130, Part 4, Diagnostic Code 9411 (1998); 38 C.F.R.
§ 4.132, Diagnostic Code 9411 (1996).
2. A 100 percent disability rating is warranted based on the
veteran's inability to secure or follow a substantially
gainful occupation. 38 C.F.R. § 4.16(c) (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Background
Initially, the Board finds that the veteran's claim is well
grounded within the meaning of 38 U.S.C.A. § 5107(a) (West
1991). A well-grounded claim is one that is meritorious on
its own or capable of substantiation. Murphy v. Derwinski, 1
Vet. App. 78, 81 (1990). Here, the veteran's claim is well
grounded because he is service-connected for PTSD and has
claimed that his disability is currently worse than rated.
See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)
(where a veteran asserted that his condition had worsened
since the last time his claim for an increased disability
evaluation for a service-connected disorder had been
considered by VA, he established a well-grounded claim for an
increased rating). The veteran has not alleged that there is
evidence available and not currently of record in support of
his claim. Accordingly, the Board finds that all relevant
facts have been properly developed and that no further
assistance to the veteran is required to comply with the duty
to assist, as mandated by 38 U.S.C.A. § 5107(a) (West 1991).
Service-connected disabilities are rated pursuant to
diagnostic codes (DC) in the Schedule for Rating
Disabilities, 38 C.F.R. Part 4 (1998) (Rating Schedule). It
must be noted that the pyramiding of various diagnoses of the
same disability is prohibited. 38 C.F.R. § 4.14 (1998).
Where there is a question as to which of two evaluations
under a specific diagnostic code shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise the lower rating will be assigned. 38 C.F.R.
§ 4.7 (1998).
It is noteworthy that, in considering the severity of a
disability, it is essential to trace the medical history of
the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1998); Schafrath
v. Derwinski, 1 Vet. App. 589, 594 (1991). However, while
the regulations require review of the recorded history of a
disability by the adjudicator to ensure a more accurate
evaluation, the regulations do not give past medical reports
precedence over the current medical findings. Where an
increase in the disability rating is at issue, the current
level of the veteran's disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
In deciding claims for VA benefits claims, "when there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant."
38 U.S.C.A. § 5107(b) (West 1991).
II. Evidence
Service medical records show no treatment for any psychiatric
disorders, including PTSD.
The first documented treatment for any psychiatric disorders
is a VA hospital summary report, dated May 1982. It shows
that the veteran was admitted for one week due, in part, to
major depression. It indicates that he had no psychiatric
history. The assessment was that his depression was rather
severe and bordered on melancholia. The veteran indicated
nightmares of being near death. He was very anxious.
Apparently the veteran had held a pistol to his head a week
prior to admission, but he was noted to not really be
suicidal. On discharge, his social and industrial impairment
was considered mild.
Another VA hospital summary shows that the veteran was
admitted for 13 months, from July 1982 to August 1983, for
major depression. He was very depressed, but denied suicidal
or homicidal thoughts. He admitted to some visual
hallucinations. It was noted in June 1983 that his condition
had not improved. However, in August 1983, it was noted that
his depression appeared to have lifted. The report reflects
that he was not employable due to recurrent major depression.
A VA discharge summary shows that the veteran was admitted
for approximately 4 weeks from March 1990 to April 1990. The
relevant diagnosis was PTSD. The veteran reported severe
nightmares and flashbacks about the Korean conflict. He
relived the war and his lost friends, making him depressed.
He was unable to sleep or cope with the outside world.
Objectively, he was very anxious, tense, uptight,
apprehensive, and tremulous. Memory, general knowledge, and
abstract ability were fair. He was discharged much improved.
Another VA discharge summary shows that the veteran was
admitted from January 1991 to February 1991. Diagnosis, in
part, was PTSD. He was admitted due to increasing symptoms
of nervousness, depression, nightmares, auditory
hallucinations, and mood swings. He admitted to paranoid
ideas. Insight, judgment, and abstraction were impaired. It
was remarked that the veteran had markedly severe social and
industrial impairment and was unable to hold a job due to his
nervous condition.
A VA discharge summary shows that the veteran was admitted
from April 1991 to May 1991, for treatment of arthritis.
PTSD was noted, but the veteran refused treatment for it.
An August 1991 private physician's letter indicates that the
veteran had manic depressive disorder, secondary to PTSD, and
that, as a result, he was totally and permanently disabled.
The veteran was again admitted for PTSD in November 1991,
according to VA hospital records. He had increasing
nightmares and flashbacks about his experiences in Korea. It
was noted that he had markedly severe social and industrial
impairment due to his nervous condition.
A January 1992 VA PTSD examination report reflects that the
veteran had nightmares, flashbacks, insomnia, depression, and
suicidal ideation. He quit work in 1981 due to these
symptoms and because he could not remember his work
assignments. Diagnosis was PTSD.
The veteran was admitted from April 1992 to May 1992,
according to a VA discharge summary. He complained of
nightmares, flashbacks, insomnia, tension, and anxiety.
Mental status examination revealed anxiety, tension, and
depressive features. Speech, attitude, orientation, memory,
intelligence, insight, and judgment were adequate. The
veteran denied suicidal or homicidal ideation, as well as
hallucinations.
A VA discharge summary shows an admission from January 1993
to February 1993, for, in part, an acute exacerbation of
PTSD. The veteran was afraid that he might lose control. He
was deemed unemployable.
Another VA discharge summary shows that the veteran was
admitted from August 1993 to September 1993. A GAF score of
40 was provided and it was noted that his highest GAF score
for the year was also 40.
The veteran was admitted in January 1994, according to VA
records. Diagnosis was generalized anxiety disorder and
PTSD.
The veteran was again admitted from December 1994 to January
1995, according to VA records. Subjective complaints were of
nightmares and flashbacks about Korea. A GAF score of 40 was
provided, with a highest score of 50 for the year.
VA outpatient records from January 1993 to April 1996 show
recurrent treatment for PTSD.
The veteran testified at a personal hearing before a local
hearing officer at the RO in May 1996. During the hearing,
he stated that he had nightmares and flashbacks about the
Korean conflict. He reported sleep difficulty and that he
disliked crowds and kept to himself.
The veteran was again admitted from December 1996 to January
1997, according to a VA discharge summary. Complaints
involved an acute exacerbation of nightmares and flashbacks.
The veteran admitted to suicidal ideation and occasional
auditory hallucinations. A GAF score of 70 was provided.
Impairment was considered to be moderate to severe. It was
noted that the veteran was socially and industrially
impaired.
A December 1997 private counseling evaluation indicates that
the veteran had symptoms of depression, loneliness, anxiety,
and hypervigilance. His stress level was definitely
inordinate. It was remarked that his PTSD had impaired his
social relationships, especially with his immediate family.
The most recent medical evidence is a VA discharge summary.
It shows that the veteran was admitted in March 1998. Mental
status examination revealed that he was cooperative and
friendly. Speech was clear. He was anxious, depressed, and
apprehensive. He was preoccupied with fear of suicide. He
had complaints of nightmares and flashbacks. Memory was
fair. Insight and judgment were good. The Axis 1 diagnosis
was PTSD. He had a GAF score of 31 on admission. The
highest GAF score for the year was 60.
III. Analysis
The veteran contends, in essence, that a rating is excess of
50 percent is warranted for his service-connected PTSD.
Under the current regulations, a 70 percent rating is
warranted for PTSD when there is occupational and social
impairment, with deficiencies in most areas, such a work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a work-like
setting); inability to establish and maintain effective
relationships. 38 C.F.R. § 4.130, DC 9411 (1997). A 100
percent rating is for application where there is evidence of:
Total occupational and social impairment,
due to such symptoms as: gross impairment
of thought processes or communication;
persistent delusions or hallucinations;
grossly inappropriate behavior;
persistent danger of hurting self or
others; intermittent inability to perform
activities of daily living (including
maintenance of minimal personal hygiene);
disorientation to time or place; memory
loss for names of close relatives, own
occupation, or own name.
38 C.F.R. § 4.130, DC 9411 (1998).
The Board notes that the regulations pertaining to mental
disorders changed since the RO's April 1995 decision. The
United States Court of Appeals for Veterans Claims (formerly
Court of Veterans Appeals) has held that, where the law or
regulation changes after a claim has been filed, but before
the administrative or judicial appeal process has been
conducted, the version of the law or regulation most
favorable to the veteran shall be applied. Karnas v.
Derwinski, 1 Vet. App. 308, 313 (1991).
The old regulations provided for a 70 percent rating when the
ability to establish or maintain effective favorable
relationships with people is severely impaired and the
psychoneurotic symptoms are of such severity and persistence
that there is severe impairment in the ability to obtain or
retain employment. 38 C.F.R. § 4.132, DC 9411 (1996). A
100 percent rating for PTSD is warranted when:
The attitudes of all contacts except the
most intimate are so adversely affected
as to result in virtual isolation in the
community. Totally incapacitating
psychoneurotic symptoms bordering on
gross repudiation of reality with
disturbed thought or behavioral processes
associated with almost all daily
activities such as fantasy, confusion,
panic and explosions of aggressive energy
resulting in profound retreat from mature
behavior. Demonstrably unable to obtain
or retain employment.
38 C.F.R. § 4.132, DC 9411 (1996).
In this case, the Board finds that the veteran's PTSD is of
such severity as to warrant a 70 percent rating under the
Rating Schedule. Specifically, the Board finds that the
medical evidence indicates that the veteran's PTSD was most
recently manifested by recurrent, severe nightmares and
flashbacks related to his war experiences in Korea. He also
had intermittent thoughts of suicide, insomnia, anxiety, and
severe depression. Visual hallucinations have also
occasionally been reported by the veteran. However, his
insight, judgment, intelligence, and memory have consistently
been determined to be fair to good. When GAF scores are
provided, they have generally ranged from 40 to 60, with a
low of 31 in 1998 and a high of 70 in 1997. The Board does
not put much probative weight on the GAF score of 70 because,
while this score indicates only mild impairment, the same VA
medical report that provides that GAF score, also indicates
that his overall impairment was "moderate to severe." In
addition, the Board finds it entirely possible that that
score was erroneous transcribed, given that the veteran's
discharge date was transcribed as January 1st, when it was
actually January 14th, and that his length of stay was
transcribed as 20 weeks, when it was really 2 weeks.
Overall, the Board concludes that the veteran's PTSD
manifestations reflect those describing a 70 percent
disability rating under both the old and new regulations of
the Rating Schedule. 38 C.F.R. § 4.130, DC 9411 (1998);
38 C.F.R. § 4.132, DC 9411 (1996). The Board recognizes
that most of the medical evidence of record consists of VA
admission reports, which, by their nature, describe the
veteran's PTSD during acute exacerbations. While these
records may not necessarily reflect the veteran's general
level of disability, the Board finds that the VA PTSD
examination reports do. These reports, in particular the
July 1996 report, also indicate that the veteran had
nightmares, flashbacks, visual hallucinations, and suicidal
ideation, suggestive of a 70 percent disability rating.
In order to warrant a schedular 100 percent disability
rating, the medical evidence must show symptoms of "total"
social and occupational impairment, with persistent
delusions, inappropriate behavior, persistent danger of
hurting self or others, disorientation, and memory loss for
names of relatives and, even, self. 38 C.F.R. § 4.130, DC
9411 (1998). Alternatively, a "virtual isolation in the
community" must be shown, with "totally incapacitating
symptoms," bordering on a repudiation of reality with
fantasy, confusion, panic, explosions of aggressive energy,
and a profound retreat from mature behavior. 38 C.F.R.
§ 4.132, DC 9411 (1996). A majority of these symptoms are
not reflected in the medical evidence. Those that are shown,
such as suicidal ideation and hallucinations, are not shown
to be of sufficient frequency or persistence to be productive
of "total" disability. Id.
Overall, the Board finds that a 70 percent schedular rating
is justified, but that a 100 percent rating is not.
The above analysis does not end the inquiry. At the time of
the veteran's claim, the law provided for a 100 percent
disability rating if a veteran had a mental disorder rated as
70 percent disabling and was unable, due solely to his
service-connected mental disorder, to secure or follow a
substantially gainful occupation. 38 C.F.R. § 4.16(c)
(1996); see Johnson v. Brown, 7 Vet. App. 95, 98-99 (1994).
Although this provision is no longer part of the regulatory
code, it was in effect at the time of the veteran's claim
and, thus, must be considered by the Board. Karnas, 1 Vet.
App. at 313 (1991).
In this regard, the Board notes that the veteran is currently
unemployed and has been so since approximately 1981. He
reported that he quit his job due to depression, insomnia,
flashbacks, and nightmares, and because he could no longer
remember his tasks. The medical evidence consistently
indicates that the veteran was unemployable due to his
nervous condition. His social and industrial impairment was
described as "markedly severe" in 1991. He was deemed
"unemployable" in a 1993 VA discharge summary. Some of the
more recent medical evidence does not indicate social and
industrial impairment of such a severity. For example, the
December 1996 VA admission report reflects only that he was
"socially and industrially impaired" and the December 1997
private evaluation report indicates that he had "impaired"
social relationships. However, the Board finds particularly
probative the March 1998 VA hospital report providing a GAF
score of 31. That report is the most recent medical evidence
of record and that GAF score is indicative of very severe
social and industrial impairment. The Board acknowledges
that that score was provided at a time when the veteran was
admitted for an acute exacerbation of his PTSD. However, the
Board finds very probative the mere fact that the veteran has
been so often admitted. VA records show no less than 11
separate and distinct admissions for PTSD treatment since
1990. This frequency of admission, alone, could very well
render the veteran unemployable. Coupled with his recurrent
nightmares, flashbacks, and insomnia, and occasional
hallucinations and suicidal ideation, the Board must conclude
that he is currently unable to secure or follow a
substantially gainful occupation.
In light of the above, the Board grants the veteran's claim
for an increased disability rating for his service-connected
PTSD, concluding that a 100 percent rating based on 38 C.F.R.
§ 4.16(c) (1996), is warranted.
ORDER
Entitlement to a 100 percent rating for the veteran's
service-connected PTSD is granted, subject to the laws and
regulations governing the payment of monetary benefits.
A. BRYANT
Member, Board of Veterans' Appeals